Rowland v. Latimer

• Decision Date: 27 October 1882
• Docket Number: Case No. 1086.
• Citation: 57 Tex. 674
• Court: Texas Supreme Court
• Parties: SHRYOCK & ROWLAND v. J. D. LATIMER ET AL.

57 Tex. 674

SHRYOCK & ROWLAND

v.J. D. LATIMER ET AL.

Case No. 1086.

Supreme Court of Texas.

Oct. 27, 1882.

ERROR from Bowie. Tried below before the Hon. B. T. Estes.

The opinion states the case.

Crawford & Smith, for plaintiffs in error.

I. A store-house entirely disconnected from the family residence, blocks and streets intervening, forms no part of the homestead, and is not exempt from forced sale, unless actually occupied as a place of business by the head of the family. The physical characteristics and geography of the premises must be such that, when taken in connection with their use, will convey notice to persons of ordinary prudence who deal with him that they are his homestead.

II. Whether or not the property in controversy is a part of the homestead must be determined by the status of the property and the parties at the time the adversary right is acquired. Iken v. Olenick, 43 Tex., 195.

W. H. Tilson, also for plaintiffs in error.

F. M. Henry, for defendants in error.

I. The court did not err in sustaining Latimer's claims to lot 6, in block 21, in said town, as part of the homestead of the defendants in error, Latimer and wife, because the proof shows that the defendants in error, on the 10th day of January, 1876, occupied the store-house on said lot 6, block 21, as a place of dwelling and also as a place to exercise the calling and business of the defendant in error, J. D. Latimer, the head of the family, he being a merchant then engaged in selling goods in said store-house; that on said 10th day of January, 1876, the said defendants in error, Latimer and wife, did designate said lot 6, block 21, and the east half of block 49, as their homestead; that the said defendants in error did occupy the said lot 6, in block 21, and east half of block 49, continuously from said 10th day of January, 1876, until January, 1878, long after the rendition of the judgment of the plaintiffs in error against Cully & Latimer, and long after the issuance of the execution and levy of the same upon the said lots and blocks. Const., sec. 51; Barnes v. White, 53 Tex., 628.

II. The court did not err in holding that the defendant in error, J. D. Latimer, was, at the date of levy and sale of said lot, a merchant, and as such was entitled to an exemption of said store-house and lot as a place of business for the head of the family. Const., sec. 51; Barnes v. White, 53 Tex., 628.

III. Defendants in error deny that the court erred in sustaining the deed of conveyance from J. D. Latimer to Kittie Latimer, as complained of by plaintiffs in error in their first assignment of error, because the proof shows that said conveyance was made in satisfaction of a debt due to her for loaned money in her separate right, being an open and lawful transaction.

IV. The temporary suspension of business as a merchant by defendant in error, J. D. Latimer, on account of pecuniary embarrassment, did not work a forfeiture of his homestead right and exemption. Const., sec. 51; Barnes v. White, 53 Tex., 628.

STAYTON, ASSOCIATE JUSTICE.

The property in controversy originally belonged to J. D. Latimer, one of the defendants in error, who in copartnership with one Cully carried on in a store-house on the lot a mercantile business until about the close of the year 1876, at which time he became financially embarrassed and ceased to do business as a merchant; since that time he has never conducted on the property any mercantile or other business.

The upper part of the house upon the lot was used by Latimer (he being a married man) as a residence, from the first of the year 1876 until about the 1st of November, 1877, at which time he removed his family to a house on the east half of block 49, in the same town, which was distant from the lot upon which the store-house is, some three or four hundred yards, where with his family he has continuously resided since that time.

Latimer has not occupied the store-house for any purpose since his removal therefrom, and about the 1st of September, 1877, rented it to Charles Block, who occupied it and used it for mercantile purposes about one year, and it has been rented to other persons continuously since Block ceased to use it; the rent for the property has been about $50 per month.

Since Latimer ceased to do a mercantile business in 1876, he has been engaged in clerking for other persons, and doing such other work as he could get to do, and since that time has been mainly dependent upon the rents received from the property in controversy for a support.

The property in controversy was sold under an execution which issued under a judgment in favor of plaintiffs in error against Cully & Latimer, and was bought by plaintiffs in execution, who received a deed from the sheriff therefor on the 12th of February, 1878.

This action was brought to try title to the property above referred to, and to other town lots which will be hereafter referred to, against Latimer and wife, who as a defense, in so far as the store-house and lot upon which it stands are concerned, set up that the same was protected to them against forced sale, under the constitution, as the place of business of the husband, and they claim that it has always been the intention of Latimer to resume business as a merchant when his financial condition is such as to enable him to do so.

The constitution of this state protects to the family in a city, town or village a homestead which “shall consist of lot or lots, not to exceed in value $5,000 at the time of their designation as the homestead, without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family.”

This court has held that the place of the home of the family, as well as the place of business of the head of the family, in a city, town or village, although not upon contiguous lots, was protected from forced sale, so long as used for the purposes contemplated by...